R v VR, E
[2006] SADC 113
•27 September 2006
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v VR, E
[2006] SADC 113
Ruling of Her Honour Judge Shaw
27 September 2006
CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT
R v Szejnoga (1998) 199 LSJS 97; R v Sakail [1993] 1 Qd R 312; R v Freeman [1980] VR 1; R v Mustafa (2005) 91 SASR 62; R v Saragozza [1984] VR 187; R v Braye-Jones [1966] Qd R 295; Daniels v The Queen (1989) 1 WAR 435 ; Eastough v R [1998] WA SCCA 154/155; R v Robertson exp A-G [1991] 1 Qd R 262; R v Lazos (1992) 78 A Crim R 388; Ugle v The Queen (1989) 167 CLR 647; Sparks v The Queen [1964] AC 964; Jones v The Queen (1991) 71 ALJR 538; R v Wilson, Tchorz and Young [1986] 42 SASR 203; Reppas v The Queen (1998) 20 WAR 178; Blayney and Blayney (2003) 87 SASR 354; Lapthorne v The Queen [1990] WAR 207; The Queen v Corkin (1989) 50 SASR 580; R v GG (2004) 151 A Crim R 92, considered.
R v VR, E
[2006] SADC 113
During the course of argument, I delivered a brief ruling in relation to the admission of evidence of complaint and distress. I now publish detailed reasons for my ruling.
The accused is charged with a number of sexual offences committed on unspecified dates between the 1st day of January 2002 and the 18th December 2003, all of which allegedly occurred in circumstances where the complainant, his wife at the time, was unaware of a sexual act occurring. On the prosecution case, the complainant first became aware of the alleged sexual acts having occurred, on the 18th day of December 2003 when she discovered numerous photographs of the sexual acts on the computer at their home. The photographs included photographs of the complainant dressed in nightclothes, partially undressed and naked. In addition there were photographs which the prosecution contend depict sexual acts without consent which are the subject of the charges before the court.
At the commencement of the pre-trial argument, the particulars in relation to each count on the Information, were amended to identify the particular photograph or photographs which were the subject of each count. The prosecution case is that the photographs show the complainant in an unconscious state at the time of the sexual acts depicted in the photographs in question. There is no evidence as to the time when the alleged offences may have taken place in relation to the time when the complainant discovered the photographs. The prosecution case depends substantially upon the inferences to be drawn from the photographs. The prosecution case is that the photographs show that the complainant was not consenting.
The defence objects to evidence being led from the complainant as to what she says she told others after locating photographic images of herself on a computer in the marital home as evidence of recent complaint. The defence also object to evidence being led from three witnesses as to the statements made by the complainant to each of them, as evidence of recent complaint. The statements which were the subject of objection were identified in the accused’s Rule 9 Notice as follows:
1.2 To her mother she said:
“... she had found photos of herself naked on the computer.”
E says in respect of both the conversation with her mother and Ms C:
“I said I was upset over finding the photos and I was after advice about whether I was over-reacting and if this was in fact normal”.
1.3 To Ms C, the complainant said:
“... that she had found some photos on the computer of herself when she was asleep that ‘E’ had taken ... She was naked and posed and that there had been penetrations. At this time she also made reference to a wine bottle”.
1.4 To Constable Kontoleon, inter alia, the complainant stated:
“... that she does not remember ever doing this and in the photos she looked asleep”.
The prosecution identified in paragraphs 3 to 7 of the prosecution outline, the evidence which it proposed to lead.
The defence also objects to the prosecution leading evidence of the complainant’s distress. According to the declarations, the evidence of distress to be led from another witness is that referred to in Constable Kontoleon’s declaration dated the 23rd February 2003. He states that at about 9.30 am on Thursday the 18th December 2003, the complainant became upset and distressed during the course of providing an account of events which included the finding of photographs of her in pornographic poses on the computer.
The defence object to the evidence of complaint and distress upon the basis that it cannot amount to a complaint demonstrating consistency of behaviour in relation to the offence or offences alleged because the complainant will give evidence that she has no memory of any of the offences. Therefore, it is submitted, she will not be able to give evidence that she did not consent at the time to the acts which are the subject of the specific charges on the information. Hence, the defence say, she will not be giving evidence in respect of which the complaints to others would buttress her credibility in relation to the particular alleged offences or any one of them.
Ms Powell QC, who appeared for the accused, submitted that there was no complaint in respect of any of the specific sexual allegations which are the subject of the particular counts on the Information.
Further, she argued that the proposed evidence of the complainant’s friend, T C, as to the alleged complaint made to her, was inconsistent with the proposed evidence of the complainant as to what she would say in fact happened in relation to the content of the photographs located by her on the 18th December 2003.
Ms Powell QC also argued that the evidence of the complainant’s distress was equivocal. For example, it would be consistent with distress in relation to the locating of photographs on her former husband’s computer as compared to the content of the photographs.
The prosecution submitted that evidence of the complainant’s distress and alleged complaint about seeing images of herself on the computer is capable of demonstrating consistency of conduct in relation to the offences charged.
The prosecution submitted that it intended to lead evidence of the complainant raising the hue and cry at a point in time when she first became aware of the “actus reus of the offending that occurred against her”[1].
[1] (p71.36)
The prosecution submitted that the complaints to T C and to the police officer were admissible because, by that stage, the complainant appeared to have gained knowledge of at least some of the counts.
The prosecution argued that they were entitled to rely on the evidence of T C, to prove that the complainant made a statement to that witness which included reference to a wine bottle, to show consistency with the prosecution allegations. The prosecution submission seemed to be that the jury could rely on the evidence of the statement made by the complainant to her friend to draw the inference that the complainant had seen a photograph depicting a bottle prior to calling her friend. The prosecution informed the court that the complainant would give evidence that she did not see such photographs until after her phone call to the police. The complainant did not recall the order in which she made the statements to her mother and to T C.
The prosecution submitted that for the evidence to be admissible as evidence of complaint, it was necessary for the consistency of behaviour to be considered in relation to the allegations that the prosecution presented to the court. The prosecution submitted that the behaviour of the complainant after locating the photographs showed consistency with the prosecution case. It was submitted that the prosecution would prove to the jury that “the complainant on becoming aware of the actus reus, if you like, of these offences, reacts to that and she reacts to that by becoming distressed and by complaining to a series of people”.
The prosecution submitted that the complaint did not have to be linked to a particular count but merely had to be “supportive” generally. It was submitted that the complaint would be said to relate to all of the photographs[2], even though the complainant did not see all of the photographs prior to making the statements which are relied upon as recent complaints.
[2] Transcript p71.17
I have had regard to the relevant authorities. The admission of the evidence of complaint is a matter to be determined by the trial judge[3]. It is for the trial judge to determine whether or not a statement is capable of amounting to a complaint[4]. The issue for me, as the trial judge, is whether the evidence is capable of constituting a complaint made at the first reasonable opportunity. The trial judge must decide “whether the complaint is capable of being regarded by the jury as being a spontaneous account by the prosecutrix of the incident the subject of the charge”[5].
[3] R v Szejnoga (1998) 199 LSJS 97 p103; R v Peake (1974) 9 SASR 458 at 461-462
[4] R v Sakail [1993] 1 Qd R 312, 321
[5] R v Freeman [1980] VR 1 at 5
The first question, which is applicable in this case, is whether there is “some evidence which, if believed by the jury, would constitute a complaint”[6].
[6] R v Mustafa (2005) 91 SASR 62
It is necessary for me to determine whether the evidence of the circumstances of the making of the statements and their content are capable of constituting a complaint or complaints[7].
[7] R v Saragozza [1984] VR 187 at 198
The context of the complaint must be sexual in nature[8].
[8] R v Braye-Jones [1966] Qd R 295 (CCA). (c.f. Saragozza supra.)
At the very least, the complaint must be regarded as being capable of being construed by a jury as a complaint of a sexual nature[9].
[9] Daniels v The Queen (1989) 1 WAR 435 at 442
The issue is whether the words in context make reference to conduct which is engaged in for a sexual purpose or in a sexual context and constitute an accusation. That is to say, unless the evidence is capable of conveying the inference that the complaint is of the sexual misconduct which is the subject of the information, the jury could not act upon it as a recent complaint[10].
[10] R v Sakail [1993] 1 Qd R 312 at 321
A statement may be too equivocal on the issue of consent to be capable of amounting to a fresh complaint[11].
[11] Eastough v R [1998] WA SCCA 154/155
It is necessary that the words spoken be capable of being accepted by the jury as amounting to an expression of a “grievance or accusation”[12], [13].
[12] R v Robertson exp A-G. [1991] 1 Qd R 262 at 267
[13] R v Lazos (1992) 78 A Crim R 388 at 394 (where it is unrealistic to separate the sexual offence from a non-sexual offence, complaint evidence may be admitted)
A complaint does not establish the facts of which the complainant gives evidence.
If the complainant does not give evidence which is the subject of the complaint, the evidence is not admissible[14]. To admit the evidence in those circumstances would be to admit the evidence for a hearsay purpose[15]. Where complaint evidence is adduced there is a need for the trial judge to give the jury a limiting instruction as to its permissible use[16]. Without such a limiting instruction, there is a real danger that a jury may use the evidence wrongly as confirmatory proof. That is, there is a requirement for a direction as to the manner in which the evidence may not be used[17]. Although the complaint evidence is peculiar to sexual offences, there are circumstances in which it may be admissible in relation to other offences[18].
[14] Ugle v The Queen (1989) 167 CLR 647
[15] Sparks v The Queen [1964] AC 964 at 980
[16] Jones v The Queen (1991) 71 ALJR 538 at 538
[17] R v Wilson, Tchorz and Young [1986] 42 SASR 203 at 208-09; R v Freeman [1980] VR 1
[18] R v Reppas (was admissible upon a charge unlawful detention which was contemporaneous with sexual offences)
In the present case, the issue for the jury will be whether the prosecution is able to prove that the complainant did not consent to the specific sexual acts identified in the photographs referred to in the particulars and further, that the accused knew that she was not consenting, or was recklessly indifferent in relation to the complainant’s consent.
This is not a case where all of the offences are alleged to be part of a single incident[19].
[19] Reppas v The Queen (1998) 20 WAR 178
The complainant will not be giving evidence that she was conscious for any period either prior to or subsequent to the acts of penetration which are the subject of the counts, so that she can speak of her specific state of mind at that time.
Although Ms McDonald informed the court[20] that she had not decided whether she would be asking questions of the complainant, such as ‘Did you consent’, or ‘would you have consented’, she agreed that in Blayney and Blayney[21], His Honour Justice Gray had construed the questions asked of the complainant as referring only to the periods when the complainant was conscious. (His Honour Justice Debelle who dissented, took a different view.)
[20] Transcript p74
[21](2003) 87 SASR 354
I am of the view that because the complainant has no recollection of the events depicted in the photographs which are the subject of the charges against the accused, she is unable to say “of her own knowledge” whether she consented to the sexual acts which are the subject of the charges.[22]
[22] R v Blayney (supra) at para 68. Also See Lapthorne v The Queen [1990] WAR 207
It follows that the complainant will not be giving evidence of her state of mind at the time of the commission of the alleged sexual offences by the accused. Therefore, she will not be giving evidence of conduct by her, namely her non-consent to the alleged sexual offences. Therefore, there will not be evidence in respect of which she makes a fresh complaint, and which fresh complaint is consistent with her conduct of non-consent.
To what extent the complainant can give evidence of her conduct upon obtaining the information to be inferred from the photographs is a different question to the issue of the admissibility of evidence of complaint and distress[23].
[23] cf R v Blayney supra at para 69
In relation to the prosecution submission that the evidence of complaint and distress was admissible to support the prosecution case, I do not accept that submission. I consider that evidence of a complaint and in the circumstances of this case, evidence of distress, if admissible, can be used only to support the complainant’s credibility insofar as she implicates the accused in any of the charges in the information, and only for the purpose of demonstrating consistency of conduct. Indeed, I consider that it would be necessary for the jury to be warned that evidence of complaint cannot be used to support the prosecution case against the accused, except to the limited extent relating to the complainant’s credibility.
In this respect, I have had regard specifically to what King CJ said in the Queen v Corkin[24], namely: ‘A complaint by the alleged victim of a sexual offence is admissible at common law only where the complainant gives evidence of the commission of the offence, and only for the purpose of showing the consistency of the complainant’s conduct in making the complaint, and of the statement or statements made by the complainant at the first reasonable opportunity, with the complainant’s evidence in court.’
[24] (1989) 50 SASR 580 at 581
I refer to the inconsistency between the proposed evidence of the complainant and the evidence of the witness, T C, as to the complainant’s statement to her.
The prosecution submitted that it was a matter for the jury to determine which version was correct. Ms McDonald submitted that “one of the two witnesses is mistaken about the time the bottle was observed”[25]. In my view, that submission cannot be correct where the only use which can be made of complaint evidence is to show consistency between the complainant’s conduct and her evidence in the witness box.
[25] (p73.7)
The proposed evidence of the witness T C as to what the complainant said, to her, will not be consistent with the complainant’s evidence as to what she says had occurred in relation to her viewing of photographs on the computer as at that time. Therefore the witness T C’s evidence cannot support the complainant’s credibility as a witness as to what she says on this topic.
The significance of the inconsistency in this case is not that there are two witnesses who give inconsistent accounts of a complaint but rather a witness who will give evidence of a statement by the complainant that an event had occurred, namely the discovery of photographs of sexual penetration (the reference to the wine bottle for example), and the complainant who will give evidence that such an event had not happened. In any event, this is not the relevant consistency which is required to justify the admissibility of complaint evidence.
The prosecution argument seemed to require a reliance on the truth of the statement about which the witness T C would give evidence, to draw the inference that the complainant’s proposed evidence was incorrect, and that indeed the complainant had seen photographs of penetration with a wine bottle at the time that she spoke to the witness T C. The submission of the prosecution in this respect merely highlights the risk of misuse by the jury. I take the view that if the evidence of a complaint was to be admitted, I would be required to direct the jury that they were not entitled to rely on the complaint statement for its truth.
The prosecution have submitted that the alleged complaint statements are admissible for the purposes of supporting the prosecution case as alleged against the accused. I reject that submission. If evidence of statements constituting complaints are admitted, their use is limited to supporting the credibility of the complainant.
I am satisfied that the statements made to the complainant’s mother (according to the mother’s declaration) and to Constable Kontoleon (according to Constable Kontoleon) were made in circumstances which remove [them] from those characteristics which mark [them] as complaints[26].
[26] R v Freeman [1980] VR 1 at 6; R v GG (2004) 151 A Crim R 92 at para 35
I am of the view that the proposed evidence of the complainant’s mother and of Constable Kontoleon does not convey a clear allegation of a sexual offence nor an accusation of sexual misconduct against the accused which is the subject of the specific charges before the court. I consider that even if the evidence could be said to support a complaint about pornography, that is not of sufficient weight nor sufficiently connected to the specific charges, to be capable of amounting to a complaint so as to outweigh the potential prejudicial value of the evidence. As I have already indicated, the complainant will not be giving evidence of conduct by her of non-consent to which the statements can be said to be a complaint.
Although the accusation or grievance need not refer to the particular offence charged, it is necessary for the grievance to refer to the particular occasion which is the subject of a particular count and to refer at least in a general way to the conduct on that particular occasion[27]. I am of the view that the statements sought to be led in this respect are not capable of amounting to an accusation or grievance in relation to the incident which is the subject of any particular count on the information.
[27] R v Saragozza [1984] VR 187
Indeed, it was necessary for the prosecution at the commencement of the pre-trial argument, to particularise the specific photographs which are the subject of the separate charges in order to avoid uncertainty as to the occasion to which the charge related, and to avoid the potential for the charges to be duplicitous. Such particularisation was also necessary to enable a court to determine questions of relevance, such as the present issue of the admission of evidence.
In relation to the submission that the photographs are part of a series, it is correct that all of the photographs were located on the accused’s computer and therefore, at a practical level, they can now be presented as part of a series (although the order is unclear). It appears that the complainant has an insufficient recollection of the detail of the photographs which she saw before the phone call to the police, from which an inference can be drawn that such photographs were taken at about the time of or in connection with the taking of the specific photographs which are the subject of the charges. For the photographs to be part of a ‘series’ of photographs in such a way that there is a relevant link between them, the connection ought to relate to the time at which they were taken, not to how it is proposed to present them in court, or even to their location on the computer.
The prosecution submitted that evidence of distress in this case, ought to be treated in the same way as complaint evidence. Distress, like complaint evidence, emanates from the complainant. That is, it may provide evidence of consistency of conduct such as to support the credibility of the complainant in relation to the matters in issue.
Based upon the proposed evidence of the complainant, I am of the view that the complainant’s initial distress is not capable of being linked to her learning that there were photographs of sexual penetration because the complainant did not see those photographs until she had spoken to the police. In any event, for the distress to be capable of being used to demonstrate consistency of conduct, it must be consistent with the complainant’s conduct of non-consent to the particular sexual acts charged. The evidence of the witness T C, as to the complainant’s distress appears to be in connection with alleged statements by the complainant about which the complainant will not give evidence.
I ruled that, in any event, even if the statements could be said to meet the necessary characteristics of a complaint to justify admission, I would exclude such statements in the exercise of my discretion.
There is a difficulty in identifying in the complainant’s declarations (or proposed evidence), the connection between the statement and conduct said to constitute complaint evidence and the proposed evidence of the complainant which is said to implicate the accused in the particular offences which are the subject of the Information.
I would be required to direct the jury in due course as to the manner in which the jury would be entitled to use the evidence in such a limited way.
I am of the view that the proposed evidence of the complainant’s initial distress is not sufficiently connected to the alleged actus reus of the offences to demonstrate relevant consistency of conduct. Her distress is not related to the happening of the alleged offences but to the finding of photographs. However, I am of the view that the evidence is capable of causing grave prejudice to the accused.
I consider that there is a risk of misuse, despite any limiting instructions that I might give. T C’s evidence of the complainant’s distress relates the distress to a wine bottle conversation. This is inconsistent with the complainant’s account of the context of her distress. In all the circumstances, I consider that its potential prejudicial value outweighs any potential probative value.
In relation to the proposed evidence of distress sought to be led from Constable Kontoleon, I took into account a number of factors in deciding to exclude the evidence in the exercise of my discretion. In particular, the distress is said to be connected to a narrative account of events in relation to the history of locating the photographs, not to the commission of the alleged offences.
In considering the question of the exercise of my discretion, I take into account the equivocal nature of the proposed evidence of distress as submitted by the defence.
In relation to the proposed evidence of the mother, T C, and of Constable Kontoleon, I consider that even if it was capable of amounting to complaint evidence, it has limited probative value.
In view of the uncertainty in the complainant’s proposed evidence as to whether her statements to others refer to any of the offences charged, prior to her contact with the police - I am referring to her proposed evidence about her statements to her mother and to T C - I would exercise my discretion to exclude the evidence. There is also uncertainty in this respect in relation to the complainant’s statements to Constable Kontoleon.
I ruled that evidence of the conduct of the complainant that is, the alleged complaint and distress, was excluded. However, that did not preclude the prosecution leading evidence of the sequence of events relating to the discovery of the photographic images. What I excluded was evidence of statements and conduct by the complainant which the prosecution sought to lead as complaint evidence or consistent conduct evidence, for the purposes of bolstering the complainant’s credibility.
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